 TOPIC TWO:  INTENTIONAL TORTS

 This Topic will cover the following Tortious Liabilities Commonly known as Intentional Torts:

 1. Trespass to person

 (a) Battery and Assault

 (b) False Imprisonment

 (2). Malicious Prosecution

 3. Interference with Chattels

 (a) Trespass to Goods

 (b) Conversion

 (c) Detinue

 4. Trespass to land.

 INTRODUCTION

 Injuries can occur for a variety of reasons. They can happen because another person was negligent or reckless, or because the person wanted to intentionally inflict an injury.

 Intentional torts occur when a person intentionally acts in a certain way that leads to another person's injury. Some common examples of intentional torts are assault, battery, trespass, and false imprisonment. 

 TRESPASS TO PERSON



 INTRODUCTION

 The essence of trespass to the person is that it provides a claimant’s protection against direct invasion of his bodily integrity. In 1959, it was established that in order to succeed in trespass, it was not enough for the claimant simply to prove a direct invasion of his bodily integrity. 

 In Fowler v. Lanning , the plaintiff’s statement of claim alleged that on a certain date and at a certain place, the defendant shot the plaintiff and thus suffered injury. The defendant objected that this statement of claim disclosed no cause of action in that it did not allege that the shooting was intentional or negligent.

 Diplock J held that to succeed in trespass, it was not enough to prove a direct act; the plaintiff had in addition to prove that the direct act was done intentionally or negligently.

 This was affirmed by Lord Denning in the case of Letang v. Cooper , While on holiday, in Cornwall, Mrs. Letang was sunbathing on a piece of grass where cars were parked. Mr. Cooper drove into the car park. He did not see her and ran into her legs injuring her. She claimed damages on both negligence and trespass to person.

 In his opinion Lord Denning went ahead to state that when the injury is not inflicted intentionally, but negligently, then the only cause of action is negligence and not trespass. If it were trespass, it would be actionable without proof. Thus, trespass to the person is actionable per se.

 Trespass to the person relates to direct and forcible injury to the person, Direct means that the injury must follow so closely on the act that it can be seen as part of the act. However, injuries caused by a car accident are not direct but are regarded as consequential. (Letang v. Cooper)

 Forcibly–used to describe any kind of threatened or actual physical interference with the person of another. Injury–includes any infringement of personal dignity or bodily integrity. Actual physical harm is however not an essential ingredient of trespass to the person since the tort is actionable per se.

 Trespass to the person, has three components which may either occur together or separately: assault, battery and false imprisonment. In their definitions, these components incorporate the words intentional and direct.

 ASSAULT

 According to Winfield and Jolowicz at pg. 71, assault is defined as an act of the defendant which causes the claimant reasonable apprehension of the infliction of battery on him by the defendant.

 Gold LJ in Collins v Wilcock , defines assault as an act which causes another person to apprehend infliction of immediate, unlawful force on his person. An obvious example can be A pointing a loaded gun at B. In such a case by virtue of pointing the gun the claimant reasonably apprehends the infliction of an immediate battery.

 Assault means any direct and intentional act of the defendant, which puts a reasonable person in apprehension of an imminent physical contact with his body. 

 Unlike battery, assault involves no bodily contact. Rather, it involves the apprehension of imminent bodily contact, and the defendant has the capacity to carry the threat into action. Verbal threats of violence can also constitute an assault if there is sufficient apprehension of their immediate implementation.

 INGREDIENTS OF ASSAULT

 CONDUCT

 Conduct amounts to something which threatens the use of unlawful force. In addition to physical action, threats can also be conveyed verbally unlike in the past when threatening words could not amount to an assault. 

 This has been attributed to by the rise of new means of communication e.g. telephone and email. where a verbal threat by these means can weigh the same as a gesture supported by threatening words which can however have the opposite effect by making it clear that the assailant does not intend to carry out the threat.

 In Turberville v. Savage , Tuberville put his hand upon his sword and said ‘If it were not assize-time, I would not take such language from you.’ Savage later sued Tuberville for assault.

 The court held that to be liable for assault at least one of the following must be present: 1. an act intending to cause harmful control to another person, or imminent apprehension, or 2. a third person put in apprehension if he believes the person can do damage. An assault exists even if the other party can defend against the action and the action is not inevitable. Mere threats of future harm are insufficient.

 In this case the court held that the declaration of Tuberville was that he would not assault Savage at that point in time. To commit an assault there must be intention followed by an act. An assault is present if the fear is reasonable. The court held that in this case there was clearly no intention of assault.The intention as well as the act makes an assault.

 REASONABLE FEAR

 The victim’s fear that the threat is likely to be carried out must be reasonable. This partly depends on a subjective test which looks at the victim’s view of the situation. 

 In R v St George , the judge said that it is an assault to point a weapon at a person though not loaded, but so near that if loaded, it might do injury. However, if the victim knew that the gun was unloaded, any fear would be regarded as unreasonable.

 The threat must be capable of being carried out at the time it is made. In cases of telephone threats, the House of Lords in R v. Ireland indicated that the fear should be that the assailant would be likely to turn up ‘within a minute or two’.

 If the defendant were to be prevented from carrying out the threat, it would still amount to assault if he was advancing with that intent. In Stephens v. Myers , it was decided that if the D was advancing with the intent, then it amounted to assault. A similar decision was made in the case of Thomas v. National Union of Mineworkers (South Wales Area) . It therefore arises that ability to carry out the threat must exist at the time the threat is made.

 Assault can also be by means of verbal threat. Traditionally the use of threatening words alone could not amount to assault. R v. Meade and Belt , but in the modern day there are other forms of communication such as telephone and emails that can be used as channels for assault.

 Examples: To throw water at a person is an assault but if any drops fall upon him it is battery. Pulling a chair as a practical joke from somebody who is about to sit on it is an assault until he reaches the floor because as he is falling he reasonably expects that the withdrawal of the chair will result in harm to him. When he hits the floor and gets hurt, then it is a battery.

 BATTERY

 According to Salmond and Heuston (p125) battery is the application of force to the person of another without lawful justification.

 Goff LJ in Collins v Wilcock states that battery is the actual infliction of unlawful force on another person. He states that touching will only amount to a battery where it does not fall within the category of physical contact generally acceptable in the ordinary conduct of general life.

 Battery means an intentional and offensive touching of another without lawful justification. . In battery, the defendant applies direct force with the plaintiff. In Fagan v Metropolitan Police Commissioner , the court held that “it requires some positive act, as opposed to a mere omission, resulting in actual physical contact with the plaintiff’s body.” Also, it is no need to be flesh to flesh.  In the case, Barry applies the force by throwing a vase at Sam and actually injures Sam indicate that Barry is intentional to hurt Sam. While, Happy and Cole apply the force of “throw the knife into Sam’s house” and cause Gavin injured constitute battery too.

 In R. v.  Rev. Father John Rwechungura , Kisanga J stated that in order to establish a battery it is necessary to prove two ingredients, (a) beating or touching of another person and (b) that the  beating or touching was done in an angry, revengeful, rude, insolent or hostile manner, which adjectives can note an evil mind.

 INGREDIENTS OF BATTERY

 INTENTION

 For there to be liability for battery, the touching must be intentional whether or not the D intended to cause injury, and if it is non-intentional, then it amounts to negligence. (Letang v. Cooper). If the D misses the person he intends to hit and he hits someone else, the doctrine of transferred malice is considered. A intending to hit B, actually hits C, C will have action against A as’ intention to hit B is transferred to C.

 In Livingstone v. Ministry of Defence , a soldier in Northern Ireland fired a baton round targeting a rioter but he missed and hit the claimant instead. It was held that the soldier had intentionally applied force to the claimant.

 DIRECT

 The battery must be the direct result of the D’s intentional act. In Scott v. Shepherd , shepherd threw a lighted squib into a market house and it landed on the stall of a ginger bread seller. To prevent damage to the stall, Willis picked it up and threw it across the market. Ryal, to save his own stall, picked it up and threw it away. It struck the claimant in the face and exploded, blinding him in one eye. The D intended to scare someone although he did not intend to hurt the particular person who was actually injured, however he was held liable in battery. 

 The force applied does not have to be personal contact e.g. in Pursell v. Horn , Where the D threw water over the claimant. In Nash v. Sheen , the claimant had gone to the D’s hairdressing salon where she was to receive a ‘permanent wave’ D was held liable in battery.

 There must be an intentional touching or contact by the D which must be proved to be a hostile touching. Wilson v. Pringle ,  A School boy admitted that he had pulled a bag which was over the shoulder of another boy making him fall and get injured. Summary judgment on the basis of battery was entered for the claimant. The school boy’s act of pulling the bag was merely a prank, the necessary element of hostility was lacking. 

 This was expounded in R v. Brown , Unlawful touching can also be described as unlawful. Though there is the issue of directness of touching, that is the touching must be applied directly from the defendant, case law dating back over the centuries just shows how widely courts are prepared to stretch the meaning of direct. 

 In Gibbons v Pepper , the defendant whipped a horse so that it bolted and ran down the claimant. The defendant was liable in battery for claimant’s injury.

 DEFENCES TO ASSAULT AND BATTERY.

 LAWFUL AUTHORITY

 A person committing assault and/or battery and has legal authority for the action cannot be liable for that act. The statutes give this authority to;

 Police officers

 The powers of police officers are provided for in the statutes and, provide that they act within the scope of those powers, they cannot be charged with trespass to the person. If the action goes beyond what is permitted, then a police officer may be liable. 

 In Collins v. Wilcock , a police officer needed to obtain a woman’s name and address in order to caution her for soliciting for the purpose of prostitution. The officer detained the woman by holding her by the elbow. The woman scratched the officer and was charged with assaulting a constable in the execution of her duty. The police officer’s action went beyond the generally acceptable conduct of touching a person to engage his or her attention.

 It therefore follows that the officer’s action constituted a battery on the woman. Reasonable force may be used to make an arrest but that force must be reasonable and proportionate to the crime being prevented.

 CONSENT

 Where the claimant has consented to the actions of the D, he lacks any cause of action. Consent may be express or implied. In sports, where a person takes part in a contact sport, then he has consented to the touching which occurs in the playing of the game within the rules. 

 In Simms v. Leigh Rugby Football Club , If the touching is not permitted within the rules, then it is unlawful and the D may be liable for trespass to the person. In medical treatment, consent must be real i.e. the victim must understand what it is that they are consenting to, for the D to be exempted from liability. A person with capacity of adult years and sound mind has an absolute right to give or withhold consent to treatment. 

 In Ms B v. An NHS Hospital Trust , The claimant was completely paralyzed, able to move her head very slightly and to speak. She was being kept alive on a ventilator and had no hope of any recovery. She faced the rest of her life like this and informed those caring for her that she wanted the ventilator turned off. She was effectively saying that she withdrew her consent to the treatment. The doctors who had been caring for her for over a year found it impossible to accept her decision and argued that she lacked capacity to make her own decisions.

 The claimant sued for a declaration that she had the necessary capacity and that her continued treatment was a trespass to her person. The Defendants were therefore liable for trespass during the time the claimant had been treated against her will and a small sum by way of damages for battery was awarded. She later went to another hospital where her decision was respected.

 NECESSITY

 Where it is necessary to prevent harm to others then trespass to the person may be justified. It can also be used in medical cases to justify treatment to a person without capacity e.g. in cases of emergency. 

 In F v. West Berkshire Health Authority ,  F aged 36 had serious mental disability and the mental capacity of a child of four. She had formed a sexual relationship with another patient and the doctors were concerned that pregnancy would be disastrous for her so they sought for a declaration from the court for an operation for her sterilization. It was held that it was in F’s best interests to be able to maintain the sexual relationship hence the operation should take place.

 PARENTAL AUTHORITY

 A parent will not be liable for assault or battery for inflicting punishment on a child if the force used is reasonable and is proportionate to the wrong committed by the child. The child must understand the purpose of punishment which must be proportionate to the wrong committed by the child.

 SELF-DEFENSE

 A person is entitled to use reasonable force in self-defence or to protect others provided that the force used is proportionate to the danger. 

 In Cockcroft v. Smith , There was a scuffle in court between a lawyer and a clerk where the clerk thrust his fingers towards the lawyer’s eyes so the lawyer bit off one of the clerks fingers. It was held not to be proportionate response to the threat.

 BATTERY VERSUS ASSAULT

 Battery & Assault are crimes as well as torts. An Assault in Criminal Law is rather different from the Tort of Assault: Read sections 240-243 of the Penal Code, Chapter 16 of the Laws of Tanzania.

 The Tort of Battery, On the other hand, exists where there is a voluntary act of the Defendant.

 Very often the threat of violence will be immediately followed by the actual application of violence to the Plaintiff's person, so that the Defendant would have committed both an Assault and a Battery. 

 An example of a situation in which there would be a battery but no assault is where the Plaintiff is struck unexpectedly from behind, or when he is asleep. 

 An example of an Assault without a Battery is where the Defendant aims a blow at the Plaintiff but his blow intercepted by a third Party.

 In Assault, the act of the Defendant must have been such a reasonable man might fear that violence was about to be applied to him. The fact that the Plaintiff was exceptionally brave and was not afraid [of threat of violence from the Defendant] will not prevent him from succeeding in his action if a Defendant of ordinary courage would have been afraid.

 Battery is the most common form of trespass to the person. It is committed by intentionally bringing about a harmful or offensive contact with the person of another. Battery action serves the dual purpose of affording protection to the individual not only against bodily harm but also against any interference with his person, sense of honour and dignity:

 A battery includes an assault. It is mainly distinguishable from an assault in the fact that physical contact is necessary to accomplish it